2001 Legislation
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HOUSE BILL NO. 243 – Small Lawsuit Resolution Act

HOUSE BILL NO. 243

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H0243aa..............................by JUDICIARY, RULES AND ADMINISTRATION
SMALL LAWSUIT RESOLUTION - Adds to existing law to provide for the Small
Lawsuit Resolution Act; to provide for application; to provide for
initiation of the process; to provide for a fee; to provide for the
selection of a civil evaluator; to provide for qualifications, appointment
and compensation of evaluators; to authorize the Idaho Supreme Court to
prescribe rules relating to evaluations; to provide evaluator authority and
procedure for evaluators; to provide for discovery and hearing procedures;
to provide for decisions and awards; to provide for appeals; to provide for
trials de novo; to provide for attorney's fees and costs; to provide for
offers of compromise; to provide for judgments; to provide for award of
witness fees and costs; and to recognize the right to trial.
                                                                        
02/14    House intro - 1st rdg - to printing
02/15    Rpt prt - to Jud
02/28    Rpt out - to Gen Ord
03/02    Rpt out amen - to engros
03/05    Rpt engros - 1st rdg - to 2nd rdg as amen
03/06    2nd rdg - to 3rd rdg as amen
03/07    Ret'd to Jud

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 243
                                                                        
                      BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SPECIAL COURT PROCEEDINGS; AMENDING TITLE 7, IDAHO  CODE,  BY  THE
  3        ADDITION  OF  A NEW CHAPTER 15, TITLE 7, IDAHO CODE, TO PROVIDE AUTHORIZA-
  4        TION, TO PROVIDE A SHORT TITLE, TO PROVIDE FOR APPLICATION OF THE CHAPTER,
  5        TO PROVIDE FOR THE INITIATION OF THE PROCESS AND TO PROVIDE FOR A FEE,  TO
  6        PROVIDE  FOR THE SELECTION OF A CIVIL EVALUATOR, TO PROVIDE FOR QUALIFICA-
  7        TIONS, APPOINTMENT AND COMPENSATION OF EVALUATORS  AND  TO  AUTHORIZE  THE
  8        IDAHO SUPREME COURT TO PRESCRIBE CERTAIN RULES RELATING TO EVALUATIONS, TO
  9        PROVIDE FOR EVALUATOR AUTHORITY AND TO PROVIDE A PROCEDURE FOR EVALUATORS,
 10        TO  PROVIDE  FOR  DISCOVERY, TO PROVIDE FOR HEARING PROCEDURES, TO PROVIDE
 11        FOR DECISIONS AND AWARDS, TO PROVIDE FOR APPEALS, TO PROVIDE FOR TRIALS DE
 12        NOVO, TO PROVIDE FOR ATTORNEY'S FEES AND COSTS, TO PROVIDE FOR  OFFERS  TO
 13        COMPROMISE,  TO PROVIDE FOR JUDGMENTS AND TO PROVIDE FOR THE AWARD OF WIT-
 14        NESS FEES AND COSTS, TO RECOGNIZE THE RIGHT TO TRIAL BY JURY AND  TO  PRO-
 15        VIDE  FOR SEVERABILITY; TO PROVIDE AN EFFECTIVE DATE AND TO PROVIDE APPLI-
 16        CATION TO CASES FILED ON AND AFTER OCTOBER 1, 2001.
                                                                        
 17    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
                                                                        
 18        SECTION 1.  That Title 7, Idaho Code, be, and the same is  hereby  amended
 19    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 20    ter 15, Title 7, Idaho Code, and to read as follows:
                                                                        
 21                                      CHAPTER 15
 22                             SMALL LAWSUIT RESOLUTION ACT
                                                                        
 23        7-1501.  AUTHORIZATION. To reduce the costs and expenses of litigation and
 24    encourage the swift, fair and cost-effective resolution of disputes, the  leg-
 25    islature  hereby  establishes  a formal system to encourage civil litigants to
 26    obtain a fair and independent evaluation of their case through an arbitration-
 27    type process. The procedures to be utilized under this chapter, while based on
 28    the process of arbitration, are intended to be as informal as  practicable  to
 29    accomplish these concurrent objectives.
                                                                        
 30        7-1502.  SHORT TITLE. This chapter shall be referred to as the "Small Law-
 31    suit Resolution Act."
                                                                        
 32        7-1503.  ACTIONS  TO  WHICH  THE  IDAHO CIVIL EVALUATION OPTION APPLIES --
 33    INITIATION OF PROCESS -- FEE. (1) All civil actions in which a  complaint  and
 34    answer have been filed, except for appeals from the magistrate division, those
 35    subject  to  arbitration  under chapter 9, title 7, Idaho Code, and those pro-
 36    ceeding in the small claims division, in which the sole  relief  sought  is  a
 37    money  judgment, and where the plaintiff agrees for purposes of the evaluation
 38    that its total claim for all damages sought does  not  exceed  fifty  thousand
 39    dollars ($50,000), are subject to one civil evaluation.
                                                                        
                                           2
                                                                        
  1        (2)  The  civil  evaluation  option shall be initiated by a party filing a
  2    notice of request for civil evaluation with the court  at  least  one  hundred
  3    twenty  (120)  days  prior to a scheduled trial. A copy of the filing shall be
  4    served on the trial court administrator for  the  district.  The  trial  court
  5    retains  jurisdiction  over  a case proceeding under this chapter and the case
  6    remains on the court's active calendar. If a defendant  files  the  notice,  a
  7    plaintiff  may  file a notice of claim in excess of evaluation limits with the
  8    trial court and the trial court administrator prior to the  assignment  of  an
  9    evaluator,  which  will  remove  the  case from the operation of this chapter.
 10    Except for the authority expressly given to the evaluator by this chapter, all
 11    issues shall be determined by the court.
 12        (3)  The filing of a notice of  request  for  civil  evaluation  shall  be
 13    accompanied  by payment of a fee of twenty dollars ($20.00) which fee shall be
 14    paid to the county district court fund and dedicated to the use of  the  trial
 15    court  administrator of the district for the performance of the administrative
 16    duties required by this chapter.
                                                                        
 17        7-1504.  SELECTION OF CIVIL EVALUATOR. (1) The trial  court  administrator
 18    for  each  judicial  district  shall  maintain  a  list  of  civil  litigation
 19    evaluators who are approved to serve in that district pursuant to this chapter
 20    and any rules adopted by the supreme court.
 21        (2)  Upon  receipt  of a notice of request for civil evaluation, the trial
 22    court administrator shall provide each party to the case the names of five (5)
 23    randomly selected civil litigation evaluators. If there are more than two  (2)
 24    parties to the litigation, the trial court administrator will provide ten (10)
 25    names.
 26        (3)  Within  five (5) days of receipt of the list, it shall be the duty of
 27    the representative of the party that filed the notice  of  request  for  civil
 28    evaluation to initiate contact with the representatives of the other litigants
 29    for  the purpose of selecting an evaluator. Unless the parties agree on a dif-
 30    ferent method, selection of the evaluator shall be by alternating strikes. The
 31    representative of the party that filed the notice of request for civil evalua-
 32    tion shall strike an evaluator's name, the opposing counsel shall then  strike
 33    an  evaluator's  name  with the parties alternating until only one (1) name is
 34    left. If there are more than two (2) parties, the strikes shall be made in the
 35    order the parties' names appear on the case caption commencing  at  the  point
 36    the  name  of  the party that filed the notice of request for civil evaluation
 37    appears. The party that filed the notice of request for civil evaluation shall
 38    notify the trial court administrator in  writing  of  the  selected  evaluator
 39    within ten (10) days of the receipt of the list.
 40        (4)  If  there  is any dispute or failure to cooperate in the procedure in
 41    subsection (3) of this section, a party may file a motion  for  assistance  in
 42    the selection of an evaluator with the court with a copy provided to the trial
 43    court  administrator.  The  court  shall rule on such motion expeditiously and
 44    take whatever steps are necessary, through its clerk or otherwise,  to  obtain
 45    the prompt selection of an evaluator.
 46        (5)  Fourteen  (14)  days  after  mailing  the  list,  if  he has not been
 47    informed of a selected evaluator or received a motion pursuant  to  subsection
 48    (4)  of this section, the trial court administrator shall assign by random lot
 49    any person on the list as the evaluator.
 50        (6)  Nothing shall preclude the parties from jointly selecting and  stipu-
 51    lating to any individual who agrees to serve as the evaluator under this stat-
 52    ute.  If the parties stipulate to an evaluator other than one on the list pro-
 53    vided by the trial court administrator, they shall file a joint  statement  to
 54    that effect with the trial court administrator.
                                                                        
                                           3
                                                                        
  1        7-1505.  QUALIFICATIONS,  APPOINTMENT  AND COMPENSATION OF EVALUATORS. (1)
  2    Any individual desiring to be on a list of civil litigation  evaluators  under
  3    this  chapter  shall submit a request to the trial court administrator in each
  4    district in which the individual wishes to serve. The  task  of  acting  as  a
  5    civil  litigation evaluator under this chapter shall be a service to the judi-
  6    ciary and the legal profession.
  7        (2)  To serve as a civil litigation evaluator, a person must currently  be
  8    an  active member of the Idaho state bar association and have had such member-
  9    ship for a minimum of seven (7) years or be a retired or senior judge. To  the
 10    extent  it  deems  necessary,  the supreme court shall prescribe by rule addi-
 11    tional qualifications for civil litigation evaluators in  some  or  all  cases
 12    with  the purpose of providing the largest pool of individuals with the knowl-
 13    edge and experience to fairly determine claims under this chapter at a minimal
 14    cost to litigants.
 15        (3)  Upon appointment, the evaluator must sign  an  oath  to  fulfill  the
 16    duties  of the office, including the impartial, unbiased, and timely discharge
 17    of those duties. The evaluator must also affirmatively state he  has  no  con-
 18    flict  of interest. Challenges to the service of an evaluator shall be made by
 19    motion to the trial court and shall be heard expeditiously.  The  trial  court
 20    may excuse evaluators from an appointment for good cause.
 21        (4)  Evaluators  shall  submit their rates of hourly compensation, if any,
 22    to the trial court administrator when submitting their request to be  on  that
 23    district's  list of civil litigation evaluators. The trial court administrator
 24    shall include the rate of hourly compensation for each evaluator in  the  list
 25    of names submitted to the parties. The parties shall each pay an equal portion
 26    of the evaluator's fee.
 27        (5)  To  the  extent it deems necessary, the supreme court shall prescribe
 28    rules to reduce the costs of evaluation, including caps  on  evaluation  fees.
 29    The  supreme court may also prescribe forms to be used in the evaluation proc-
 30    ess, and any such other rules, standards or procedures it deems appropriate to
 31    effectuate the purposes of this chapter.
                                                                        
 32        7-1506.  EVALUATOR'S AUTHORITY AND PROCEDURE. (1) An evaluator under  this
 33    chapter has the authority to:
 34        (a)  Decide  procedural  issues  arising  before  or during the evaluation
 35        hearing except issues relating to  the  qualification  of  the  evaluator,
 36        which shall be decided by the trial court.
 37        (b)  Invite,  with  reasonable notice, the parties to submit preevaluation
 38        briefs;
 39        (c)  Examine any site or object relevant to the case;
 40        (d)  Administer oaths and affirmations to witnesses;
 41        (e)  Rule on the admissibility of evidence;
 42        (f)  Determine the facts, decide the law, issue a decision,  and  make  an
 43        award; and
 44        (g)  Take  such  other acts as are necessary to accomplish the object of a
 45        fair, swift, and cost-effective determination of the case.
 46        (2)  An evaluator shall not decide motions to dismiss, motions to  add  or
 47    change  parties  in the case, or motions for summary judgment. Any such motion
 48    shall be presented to the trial court for determination.
 49        (3)  After the case is assigned to the evaluator, service  shall  be  made
 50    consistent  with  rule  5  of  the Idaho rules of civil procedure, except that
 51    evaluation documents shall be filed with the evaluator instead of the court.
 52        (4)  Time shall be computed pursuant to rules  6(a)  and  6(e)(1)  of  the
 53    Idaho rules of civil procedure.
                                                                        
                                           4
                                                                        
  1        7-1507.  DISCOVERY. (1) Unless the evaluator orders otherwise:
  2        (a)  The  defendant  may  demand in writing a statement from the plaintiff
  3        setting forth separately the amounts of any special, general or other dam-
  4        ages sought in the evaluation. Such  statement  shall  be  served  on  the
  5        defendant no later than twenty-one (21) days after receipt of the demand;
  6        (b)  A  party may take the deposition of another party pursuant to rule 30
  7        of the Idaho rules of civil procedure;
  8        (c)  If the physical or mental condition of the plaintiff is at issue, and
  9        there are multiple defendants, a defendant may obtain another  defendant's
 10        copy  of  the  medical  examination report of the plaintiff. The evaluator
 11        shall decide any limitations to be placed on the time, place, manner, con-
 12        ditions or scope of the examination if  requested.   A  plaintiff  has  an
 13        absolute  right  to  a copy of any document created by the examiner or the
 14        examiner's employees or agents during or after the examination. Such mate-
 15        rials shall be provided to the plaintiff within fourteen (14) days of  the
 16        date  of  the  examination and no later than twenty-one (21) days prior to
 17        the hearing date. Failure to timely provide the medical  examiner's  mate-
 18        rials  shall  be  a basis for vacating and rescheduling the hearing or for
 19        excluding the evidence if the plaintiff so chooses;
 20        (d)  The parties may submit requests for admission to one another pursuant
 21        to rule 36 of the Idaho rules of civil procedure.
 22        (2)  It is presumed that no additional discovery shall be allowed for  the
 23    purpose  of  the  evaluation  unless  the  parties  stipulate  thereto  or the
 24    evaluator has ordered otherwise based on the  evaluator's  determination  that
 25    such discovery is necessary to obtain a fair, swift, and cost-effective deter-
 26    mination of the case.
                                                                        
 27        7-1508.  HEARING  PROCEDURES.  (1)  The evaluator shall set the time, date
 28    and place of the hearing and shall give reasonable notice of  the  hearing  to
 29    the parties. The parties may agree to hold the hearing by telephone. Except by
 30    stipulation  among the parties and the evaluator, or for good cause shown, the
 31    hearing shall be scheduled to take place  no  sooner  than  twenty-eight  (28)
 32    days, nor later than seventy (70) days, from the date of the assignment of the
 33    case  to  the evaluator.  If a case will be heard later than seventy (70) days
 34    from the date of assignment, the evaluator shall file a notice with the  trial
 35    court  providing  reasons for the delay and informing the court of the date of
 36    the hearing.
 37        (2)  Counsel for the parties and the evaluator may issue subpoenas for the
 38    hearing in the manner provided in rule 45(a) of the Idaho rules of civil  pro-
 39    cedure.
 40        (3)  At least fourteen (14) days prior to the date of the evaluation hear-
 41    ing, each party shall file with the evaluator and serve upon all other parties
 42    a  prehearing  statement  containing  a list of witnesses the party intends to
 43    call at the evaluation hearing and a list of exhibits and documentary evidence
 44    a party intends to utilize at the hearing. The document will identify  whether
 45    the  testimony  shall be live, presented in a sworn writing, or taken by tele-
 46    phone.  Upon request, all evidence identified shall be made available for  the
 47    opposing party's inspection at least seven (7) days prior to the hearing date.
 48    The  evaluator  shall  have  the right to exclude any evidence not provided in
 49    compliance with this section.
 50        (4)  The evaluator shall control the mode and  order  of  proof  with  the
 51    objectives of making the presentation of evidence effective for the ascertain-
 52    ment of facts, avoiding the needless consumption of time, protecting witnesses
 53    from  harassment  and  undue  embarrassment  and ensuring the fair, swift, and
 54    cost-effective determination of the case. Witnesses shall testify  under  oath
                                                                        
                                           5
                                                                        
  1    with the full penalty of law to apply to violation of that oath. The evaluator
  2    may  allow testimony by telephone or other nontraditional means. The evaluator
  3    may question any party's witness. A party has the right  of  cross-examination
  4    of any witness that testifies.
  5        (5)  The  hearing  may  be recorded electronically upon the request of any
  6    party, the cost to be borne by that party.
  7        (6)  Proceedings shall be under the control of the evaluator and as infor-
  8    mal as practicable. The extent to which the formal rules of evidence  will  be
  9    applied  shall  rest  in the discretion of the evaluator. To the extent deter-
 10    mined applicable, the evaluator shall construe those rules liberally in  order
 11    to effectuate a fair, swift and cost-efficient procedure.
 12        (7)  To effectuate the fair, swift and cost-efficient nature of the evalu-
 13    ation proceedings, the following documents shall be presumed admissible at the
 14    evaluation  hearing and may be provided to the evaluator prior to the hearing,
 15    provided the documents are disclosed in the prehearing  statement  and,  where
 16    relevant, the name, address and telephone number of the author of the document
 17    is contained in the document or set forth in the prehearing statement:
 18        (a)  A  bill, report, chart or record of a hospital, doctor, dentist, reg-
 19        istered nurse, licensed practical nurse, physical therapist,  psychologist
 20        or  other  health  care  provider,  on  a  letterhead, billhead or another
 21        clearly identifiable document  as  part  of  the  provider's  professional
 22        record;
 23        (b)  A  bill  for  drugs,  medical appliances or other related expenses on
 24        letterhead, billhead or another clearly identifiable document as part of a
 25        provider's professional record;
 26        (c)  A bill for, or estimate of, property damage or loss on  a  letterhead
 27        or  billhead.  In the case of an estimate, the offering party shall notify
 28        the adverse party as part of the prehearing statement whether the property
 29        was repaired, in full or in part, and shall provide a copy of  the  actual
 30        bill showing the cost of repairs;
 31        (d)  A  police,  weather,  or wage loss report or standard life expectancy
 32        table to the extent it is relevant without need for authentication;
 33        (e)  A photograph, videotape, x-ray, drawing, map,  blueprint  or  similar
 34        evidence to the extent it is relevant without the need for authentication;
 35        (f)  The  written statement of any witness made as part of a police inves-
 36        tigation;
 37        (g)  The written statement of any witness, including a written  report  of
 38        any  expert  witness  setting forth a statement of opinion based on proper
 39        qualifications and which the witness would be allowed to express if testi-
 40        fying in person, if it is made by sworn affidavit;
 41        (h)  A document not specifically  covered  by  the  foregoing  but  having
 42        equivalent  circumstantial guarantees of trustworthiness, the admission of
 43        which would help in the swift, fair and cost-effective resolution  of  the
 44        dispute or otherwise serve the interests of justice.
 45        This  section  does not authorize direct contact by counsel with any indi-
 46    vidual in contravention of the Idaho rules of professional conduct, the  Idaho
 47    rules of civil procedure, or other law.
 48        (8)  The admission of a document under subsection (7) of this section does
 49    not  restrict  in  any  manner argument or proof relating to the weight of the
 50    evidence admitted, nor does it limit the evaluator's discretion  to  determine
 51    the weight of the evidence after hearing all evidence and the arguments of the
 52    opposing parties.
 53        (9)  The  evaluation hearing may proceed, and a decision may issue, in the
 54    absence of any party who, after due notice, fails to participate or to  obtain
 55    a  continuance.  Continuances shall only be granted for good cause and for the
                                                                        
                                           6
                                                                        
  1    shortest practicable time. If a  defendant  is  absent,  the  evaluator  shall
  2    require  the  plaintiff  to  submit the evidence required for the making of an
  3    award. In a case involving more than one  (1)  defendant,  the  absence  of  a
  4    defendant does not preclude the evaluator from assessing as part of the award,
  5    damages against the defendant or defendants who are absent. The evaluator, for
  6    good cause shown, may allow an absent party an opportunity to appear at a sub-
  7    sequent  hearing  before  making an award. A party who fails to participate in
  8    the hearing or prehearing process without good cause waives  the  right  to  a
  9    trial  de novo. If it is shown to the trial court by clear and convincing evi-
 10    dence that a party has not acted in good  faith  during  the  evaluation,  the
 11    trial court may impose any appropriate sanction.
                                                                        
 12        7-1509.  DECISION  AND AWARD -- APPEALS -- TRIAL DE NOVO -- MISCELLANEOUS.
 13    (1) Within fourteen (14) days following the evaluation hearing, the  evaluator
 14    shall  issue  a  decision  in  writing  that  is  signed by the evaluator. The
 15    evaluator shall determine all issues raised  by  the  pleadings,  including  a
 16    determination  of any damages. The evaluator shall apply the law as it exists;
 17    however, neither findings of fact nor conclusions of  law  are  required.  The
 18    decision  shall be served on the parties. The evaluator shall file a notice of
 19    issuance of the evaluator's decision with the clerk  of  the  court,  together
 20    with proof of service of the notice and the decision on the parties. The deci-
 21    sion  itself  shall  not  be filed with the clerk of the court. No evaluator's
 22    award shall exceed fifty thousand dollars ($50,000) in total damages.
 23        (2)  Within fourteen (14)  days  after  the  notice  of  issuance  of  the
 24    evaluator's  decision is filed with the clerk of the court, any party may file
 25    with the clerk a written notice of appeal and request for a trial de  novo  in
 26    the  district  court  on  all issues of law and fact. Within twenty-eight (28)
 27    days after the request for a trial de novo is filed,  the  trial  court  shall
 28    hold  a  scheduling  conference  pursuant  to rule 16(b) of the Idaho rules of
 29    civil procedure and shall schedule the trial to commence  no  later  than  two
 30    hundred seventy (270) days from the scheduling conference.
 31        (3)  The  trial  de  novo  shall  proceed  as  if  the  evaluation had not
 32    occurred. No reference to the amount of the evaluation award or  the  fact  of
 33    evaluation shall be made to the trial court or the jury during any part of the
 34    trial  de  novo.  Discovery taken and statements made during the course of the
 35    evaluation proceeding are admissible at  the  trial  de  novo  to  the  extent
 36    allowed  by  the rules of evidence; however, no reference shall be made to the
 37    fact that any statement was made  in  an  evaluation  proceeding.  Any  dollar
 38    amounts  sought,  demanded  or  awarded  during  the evaluation, including the
 39    plaintiff's agreement that for the purposes of the  evaluation  the  claim  is
 40    limited  to  fifty thousand dollars ($50,000), shall be treated as an offer to
 41    compromise pursuant to rule 408 of the Idaho rules of evidence and  shall  not
 42    be  admissible  at  trial.  Any examination made pursuant to the provisions of
 43    section 7-1507(1)(c), Idaho Code, shall be subject to rule  35  of  the  Idaho
 44    rules  of  civil procedure. Any violation of the rules in this subsection by a
 45    party or its representatives shall be subject to appropriate sanctions by  the
 46    trial court.
 47        (4)  The  relief  sought at trial shall not be limited by the selection of
 48    the evaluation option. An evaluator shall not be called as a  witness  at  the
 49    trial de novo.
 50        (5)  The trial court shall assess all costs and reasonable attorney's fees
 51    against  a party who appeals from an evaluation award and fails to improve its
 52    position at the trial de novo by greater than twenty percent (20%).
 53        (6)  Up to thirty (30) days prior to the actual date of a trial  de  novo,
 54    the  nonappealing  party may serve upon the appealing party a written offer of
                                                                        
                                           7
                                                                        
  1    compromise. In any case in which an offer of compromise is not accepted by the
  2    appealing party within ten (10)  calendar  days  after  service  thereof,  the
  3    amount  used for determining whether the party appealing the evaluator's award
  4    has improved its position shall be the amount of the offer of compromise.  The
  5    evaluator's decision and the offer of compromise shall not be submitted to the
  6    trial court until after the verdict is rendered in the trial de novo.
  7        (7)  The  trial  court  may  assess  some  or  all  costs  and  reasonable
  8    attorney's  fees against a party who withdraws its request for a trial de novo
  9    where the withdrawal is not in conjunction with the acceptance of an offer  to
 10    compromise.
 11        (8)  For  the  purposes  of  this section "costs and reasonable attorney's
 12    fees" means all those provided for by statute or rule as well  as  all  expert
 13    witness  and other expenses the court finds were reasonably incurred after the
 14    appeal from the evaluation award was filed.
 15        (9)  If the nonappealing party from the evaluation prevails at  the  trial
 16    de  novo,  even though the appealing party may have improved its position from
 17    the evaluation, this chapter does not affect or preclude  the  application  of
 18    any  other  statute or rule regarding fees or costs including, but not limited
 19    to, those set forth in titles 7, and 12, Idaho Code,  section  41-1839,  Idaho
 20    Code, or the Idaho rules of civil procedure.
 21        (10) If  no  appeal  has  been filed at the expiration of twenty (20) days
 22    following the filing of the evaluator's notice of decision, a judgment may  be
 23    presented  to  the court by any party accompanied by a copy of the evaluator's
 24    award and if the judgment is in conformity with the evaluator's award it shall
 25    be entered. The judgment, when entered, shall have the same force  and  effect
 26    as  any  other  judgment  in a civil action but it is not subject to appellate
 27    review and may only be set aside pursuant to the provisions of rule 60 of  the
 28    Idaho rules of civil procedure.
 29        (11) Witness fees and other costs provided for by statute or court rule in
 30    district  court  proceedings shall be awarded by the court upon entry of judg-
 31    ment in the same manner as if the hearing had been held in court.
 32        (12) An evaluator may obtain a judgment for his fees in the pending  liti-
 33    gation  against  any  party that refuses to pay its share of the fee. Judgment
 34    shall be obtained by motion to the trial court which can only be granted after
 35    the party failing to pay has had the opportunity to object.
                                                                        
 36        7-1510.  RIGHT TO TRIAL BY JURY. The intent of this statute is to maintain
 37    the right to a jury trial and the provisions of this  statute  shall  be  con-
 38    strued to uphold that right.
                                                                        
 39        7-1511.  SEVERABILITY. If any provision of this chapter or its application
 40    to any person or circumstance is held invalid, the remainder of the chapter or
 41    the  application  of  the  provision  to other persons or circumstances is not
 42    affected.
                                                                        
 43        SECTION 2.  This act shall be in full force and effect on and  after  July
 44    1, 2001, and trial court administrators of each judicial district of the state
 45    of Idaho shall, thereafter, compile the names of individuals desiring to serve
 46    as civil litigation evaluators in their respective judicial districts pursuant
 47    to  the provisions of this act. To effect a transition, the provisions of this
 48    act shall apply only to those cases pending on, or  filed  after,  October  1,
 49    2001.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                                                     Moved by    Smith               
                                                                        
                                                     Seconded by Moss                
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 243
                                                                        
  1                               AMENDMENTS TO SECTION 1
  2        On page 1 of the printed bill,  in  line  33,  delete  "All"  and  insert:
  3    "Except  for  good  cause  shown  all"; in line 38, delete "fifty" and insert:
  4    "twenty-five"; and in line 39, delete "($50,000)" and insert: "($25,000)".
  5        On page 3, following line 31, insert:
  6        "(6)  The supreme court may assign the duties given  to  the  trial  court
  7    administrator  by this chapter to any other administrative office(s) the court
  8    deems proper and establish procedures  to  allow  appointment  of  sitting  or
  9    senior judges as evaluators at no cost to the parties.
 10        (7)  The  supreme court may exempt cases filed in the courts of any county
 11    from the operation of this chapter  if,  following  application  made  by  the
 12    administrative  judge  of the judicial district in which that county sits, the
 13    supreme court determines the county does  not  have  sufficient  judicial  and
 14    other  resources  to  implement and effectuate the purposes of this chapter or
 15    for other good cause shown.".
 16        On page 4, in line 2, delete "defendant" and  insert:  "defending  party";
 17    and also in line 2, delete "plaintiff" and insert: "claimant".
 18        On  page 6, in line 22, delete "fifty" and insert: "twenty-five"; and also
 19    in line 22, delete "($50,000)" and insert: "($25,000)";  in  line  40,  delete
 20    "fifty" and insert: "twenty-five"; and also in line 40, delete "($50,000)" and
 21    insert:  "($25,000)"; and in line 52, following "(20%)" insert: ", which shall
 22    include consideration of offsets, counterclaims and third party claims".
                                                                        
 23                                 CORRECTION TO TITLE
 24        On page 1, in line 8, following "EVALUATIONS," insert: "TO PROVIDE FOR THE
 25    ASSIGNMENT OF THE DUTIES GIVEN TO THE TRIAL  COURT  ADMINISTRATOR  TO  CERTAIN
 26    PERSONS  AND TO PROVIDE FOR THE EXEMPTION OF CERTAIN CASES FROM APPLICATION OF
 27    THE CHAPTER,".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 243, As Amended
                                                                        
                      BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SPECIAL COURT PROCEEDINGS; AMENDING TITLE 7, IDAHO  CODE,  BY  THE
  3        ADDITION  OF  A NEW CHAPTER 15, TITLE 7, IDAHO CODE, TO PROVIDE AUTHORIZA-
  4        TION, TO PROVIDE A SHORT TITLE, TO PROVIDE FOR APPLICATION OF THE CHAPTER,
  5        TO PROVIDE FOR THE INITIATION OF THE PROCESS AND TO PROVIDE FOR A FEE,  TO
  6        PROVIDE  FOR THE SELECTION OF A CIVIL EVALUATOR, TO PROVIDE FOR QUALIFICA-
  7        TIONS, APPOINTMENT AND COMPENSATION OF EVALUATORS  AND  TO  AUTHORIZE  THE
  8        IDAHO SUPREME COURT TO PRESCRIBE CERTAIN RULES RELATING TO EVALUATIONS, TO
  9        PROVIDE FOR THE ASSIGNMENT OF THE DUTIES GIVEN TO THE TRIAL COURT ADMINIS-
 10        TRATOR  TO  CERTAIN  PERSONS  AND  TO PROVIDE FOR THE EXEMPTION OF CERTAIN
 11        CASES FROM APPLICATION OF THE CHAPTER, TO PROVIDE FOR EVALUATOR  AUTHORITY
 12        AND  TO  PROVIDE  A PROCEDURE FOR EVALUATORS, TO PROVIDE FOR DISCOVERY, TO
 13        PROVIDE FOR HEARING PROCEDURES, TO PROVIDE FOR DECISIONS  AND  AWARDS,  TO
 14        PROVIDE  FOR  APPEALS,  TO  PROVIDE  FOR  TRIALS  DE  NOVO, TO PROVIDE FOR
 15        ATTORNEY'S FEES AND COSTS, TO PROVIDE FOR OFFERS TO COMPROMISE, TO PROVIDE
 16        FOR JUDGMENTS AND TO PROVIDE FOR THE AWARD OF WITNESS FEES AND  COSTS,  TO
 17        RECOGNIZE  THE  RIGHT TO TRIAL BY JURY AND TO PROVIDE FOR SEVERABILITY; TO
 18        PROVIDE AN EFFECTIVE DATE AND TO PROVIDE APPLICATION TO CASES FILED ON AND
 19        AFTER OCTOBER 1, 2001.
                                                                        
 20    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 21        SECTION 1.  That Title 7, Idaho Code, be, and the same is  hereby  amended
 22    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 23    ter 15, Title 7, Idaho Code, and to read as follows:
                                                                        
 24                                      CHAPTER 15
 25                             SMALL LAWSUIT RESOLUTION ACT
                                                                        
 26        7-1501.  AUTHORIZATION. To reduce the costs and expenses of litigation and
 27    encourage the swift, fair and cost-effective resolution of disputes, the  leg-
 28    islature  hereby  establishes  a formal system to encourage civil litigants to
 29    obtain a fair and independent evaluation of their case through an arbitration-
 30    type process. The procedures to be utilized under this chapter, while based on
 31    the process of arbitration, are intended to be as informal as  practicable  to
 32    accomplish these concurrent objectives.
                                                                        
 33        7-1502.  SHORT TITLE. This chapter shall be referred to as the "Small Law-
 34    suit Resolution Act."
                                                                        
 35        7-1503.  ACTIONS  TO  WHICH  THE  IDAHO CIVIL EVALUATION OPTION APPLIES --
 36    INITIATION OF PROCESS -- FEE. (1)  Except  for  good  cause  shown  all  civil
 37    actions  in  which  a complaint and answer have been filed, except for appeals
 38    from the magistrate division, those subject to arbitration  under  chapter  9,
 39    title  7,  Idaho  Code,  and those proceeding in the small claims division, in
 40    which the sole relief sought is a money  judgment,  and  where  the  plaintiff
                                                                        
                                           2
                                                                        
  1    agrees  for  purposes  of  the evaluation that its total claim for all damages
  2    sought does not exceed twenty-five thousand dollars ($25,000), are subject  to
  3    one civil evaluation.
  4        (2)  The  civil  evaluation  option shall be initiated by a party filing a
  5    notice of request for civil evaluation with the court  at  least  one  hundred
  6    twenty  (120)  days  prior to a scheduled trial. A copy of the filing shall be
  7    served on the trial court administrator for  the  district.  The  trial  court
  8    retains  jurisdiction  over  a case proceeding under this chapter and the case
  9    remains on the court's active calendar. If a defendant  files  the  notice,  a
 10    plaintiff  may  file a notice of claim in excess of evaluation limits with the
 11    trial court and the trial court administrator prior to the  assignment  of  an
 12    evaluator,  which  will  remove  the  case from the operation of this chapter.
 13    Except for the authority expressly given to the evaluator by this chapter, all
 14    issues shall be determined by the court.
 15        (3)  The filing of a notice of  request  for  civil  evaluation  shall  be
 16    accompanied  by payment of a fee of twenty dollars ($20.00) which fee shall be
 17    paid to the county district court fund and dedicated to the use of  the  trial
 18    court  administrator of the district for the performance of the administrative
 19    duties required by this chapter.
                                                                        
 20        7-1504.  SELECTION OF CIVIL EVALUATOR. (1) The trial  court  administrator
 21    for  each  judicial  district  shall  maintain  a  list  of  civil  litigation
 22    evaluators who are approved to serve in that district pursuant to this chapter
 23    and any rules adopted by the supreme court.
 24        (2)  Upon  receipt  of a notice of request for civil evaluation, the trial
 25    court administrator shall provide each party to the case the names of five (5)
 26    randomly selected civil litigation evaluators. If there are more than two  (2)
 27    parties to the litigation, the trial court administrator will provide ten (10)
 28    names.
 29        (3)  Within  five (5) days of receipt of the list, it shall be the duty of
 30    the representative of the party that filed the notice  of  request  for  civil
 31    evaluation to initiate contact with the representatives of the other litigants
 32    for  the purpose of selecting an evaluator. Unless the parties agree on a dif-
 33    ferent method, selection of the evaluator shall be by alternating strikes. The
 34    representative of the party that filed the notice of request for civil evalua-
 35    tion shall strike an evaluator's name, the opposing counsel shall then  strike
 36    an  evaluator's  name  with the parties alternating until only one (1) name is
 37    left. If there are more than two (2) parties, the strikes shall be made in the
 38    order the parties' names appear on the case caption commencing  at  the  point
 39    the  name  of  the party that filed the notice of request for civil evaluation
 40    appears. The party that filed the notice of request for civil evaluation shall
 41    notify the trial court administrator in  writing  of  the  selected  evaluator
 42    within ten (10) days of the receipt of the list.
 43        (4)  If  there  is any dispute or failure to cooperate in the procedure in
 44    subsection (3) of this section, a party may file a motion  for  assistance  in
 45    the selection of an evaluator with the court with a copy provided to the trial
 46    court  administrator.  The  court  shall rule on such motion expeditiously and
 47    take whatever steps are necessary, through its clerk or otherwise,  to  obtain
 48    the prompt selection of an evaluator.
 49        (5)  Fourteen  (14)  days  after  mailing  the  list,  if  he has not been
 50    informed of a selected evaluator or received a motion pursuant  to  subsection
 51    (4)  of this section, the trial court administrator shall assign by random lot
 52    any person on the list as the evaluator.
 53        (6)  Nothing shall preclude the parties from jointly selecting and  stipu-
 54    lating to any individual who agrees to serve as the evaluator under this stat-
                                                                        
                                           3
                                                                        
  1    ute.  If the parties stipulate to an evaluator other than one on the list pro-
  2    vided by the trial court administrator, they shall file a joint  statement  to
  3    that effect with the trial court administrator.
                                                                        
  4        7-1505.  QUALIFICATIONS,  APPOINTMENT  AND COMPENSATION OF EVALUATORS. (1)
  5    Any individual desiring to be on a list of civil litigation  evaluators  under
  6    this  chapter  shall submit a request to the trial court administrator in each
  7    district in which the individual wishes to serve. The  task  of  acting  as  a
  8    civil  litigation evaluator under this chapter shall be a service to the judi-
  9    ciary and the legal profession.
 10        (2)  To serve as a civil litigation evaluator, a person must currently  be
 11    an  active member of the Idaho state bar association and have had such member-
 12    ship for a minimum of seven (7) years or be a retired or senior judge. To  the
 13    extent  it  deems  necessary,  the supreme court shall prescribe by rule addi-
 14    tional qualifications for civil litigation evaluators in  some  or  all  cases
 15    with  the purpose of providing the largest pool of individuals with the knowl-
 16    edge and experience to fairly determine claims under this chapter at a minimal
 17    cost to litigants.
 18        (3)  Upon appointment, the evaluator must sign  an  oath  to  fulfill  the
 19    duties  of the office, including the impartial, unbiased, and timely discharge
 20    of those duties. The evaluator must also affirmatively state he  has  no  con-
 21    flict  of interest. Challenges to the service of an evaluator shall be made by
 22    motion to the trial court and shall be heard expeditiously.  The  trial  court
 23    may excuse evaluators from an appointment for good cause.
 24        (4)  Evaluators  shall  submit their rates of hourly compensation, if any,
 25    to the trial court administrator when submitting their request to be  on  that
 26    district's  list of civil litigation evaluators. The trial court administrator
 27    shall include the rate of hourly compensation for each evaluator in  the  list
 28    of names submitted to the parties. The parties shall each pay an equal portion
 29    of the evaluator's fee.
 30        (5)  To  the  extent it deems necessary, the supreme court shall prescribe
 31    rules to reduce the costs of evaluation, including caps  on  evaluation  fees.
 32    The  supreme court may also prescribe forms to be used in the evaluation proc-
 33    ess, and any such other rules, standards or procedures it deems appropriate to
 34    effectuate the purposes of this chapter.
 35        (6)  The supreme court may assign the duties  given  to  the  trial  court
 36    administrator  by this chapter to any other administrative office(s) the court
 37    deems proper and establish procedures  to  allow  appointment  of  sitting  or
 38    senior judges as evaluators at no cost to the parties.
 39        (7)  The  supreme court may exempt cases filed in the courts of any county
 40    from the operation of this chapter  if,  following  application  made  by  the
 41    administrative  judge  of the judicial district in which that county sits, the
 42    supreme court determines the county does  not  have  sufficient  judicial  and
 43    other  resources  to  implement and effectuate the purposes of this chapter or
 44    for other good cause shown.
                                                                        
 45        7-1506.  EVALUATOR'S AUTHORITY AND PROCEDURE. (1) An evaluator under  this
 46    chapter has the authority to:
 47        (a)  Decide  procedural  issues  arising  before  or during the evaluation
 48        hearing except issues relating to  the  qualification  of  the  evaluator,
 49        which shall be decided by the trial court.
 50        (b)  Invite,  with  reasonable notice, the parties to submit preevaluation
 51        briefs;
 52        (c)  Examine any site or object relevant to the case;
 53        (d)  Administer oaths and affirmations to witnesses;
                                                                        
                                           4
                                                                        
  1        (e)  Rule on the admissibility of evidence;
  2        (f)  Determine the facts, decide the law, issue a decision,  and  make  an
  3        award; and
  4        (g)  Take  such  other acts as are necessary to accomplish the object of a
  5        fair, swift, and cost-effective determination of the case.
  6        (2)  An evaluator shall not decide motions to dismiss, motions to  add  or
  7    change  parties  in the case, or motions for summary judgment. Any such motion
  8    shall be presented to the trial court for determination.
  9        (3)  After the case is assigned to the evaluator, service  shall  be  made
 10    consistent  with  rule  5  of  the Idaho rules of civil procedure, except that
 11    evaluation documents shall be filed with the evaluator instead of the court.
 12        (4)  Time shall be computed pursuant to rules  6(a)  and  6(e)(1)  of  the
 13    Idaho rules of civil procedure.
                                                                        
 14        7-1507.  DISCOVERY. (1) Unless the evaluator orders otherwise:
 15        (a)  The defending party may demand in writing a statement from the claim-
 16        ant  setting forth separately the amounts of any special, general or other
 17        damages sought in the evaluation. Such statement shall be  served  on  the
 18        defendant no later than twenty-one (21) days after receipt of the demand;
 19        (b)  A  party may take the deposition of another party pursuant to rule 30
 20        of the Idaho rules of civil procedure;
 21        (c)  If the physical or mental condition of the plaintiff is at issue, and
 22        there are multiple defendants, a defendant may obtain another  defendant's
 23        copy  of  the  medical  examination report of the plaintiff. The evaluator
 24        shall decide any limitations to be placed on the time, place, manner, con-
 25        ditions or scope of the examination if  requested.   A  plaintiff  has  an
 26        absolute  right  to  a copy of any document created by the examiner or the
 27        examiner's employees or agents during or after the examination. Such mate-
 28        rials shall be provided to the plaintiff within fourteen (14) days of  the
 29        date  of  the  examination and no later than twenty-one (21) days prior to
 30        the hearing date. Failure to timely provide the medical  examiner's  mate-
 31        rials  shall  be  a basis for vacating and rescheduling the hearing or for
 32        excluding the evidence if the plaintiff so chooses;
 33        (d)  The parties may submit requests for admission to one another pursuant
 34        to rule 36 of the Idaho rules of civil procedure.
 35        (2)  It is presumed that no additional discovery shall be allowed for  the
 36    purpose  of  the  evaluation  unless  the  parties  stipulate  thereto  or the
 37    evaluator has ordered otherwise based on the  evaluator's  determination  that
 38    such discovery is necessary to obtain a fair, swift, and cost-effective deter-
 39    mination of the case.
                                                                        
 40        7-1508.  HEARING  PROCEDURES.  (1)  The evaluator shall set the time, date
 41    and place of the hearing and shall give reasonable notice of  the  hearing  to
 42    the parties. The parties may agree to hold the hearing by telephone. Except by
 43    stipulation  among the parties and the evaluator, or for good cause shown, the
 44    hearing shall be scheduled to take place  no  sooner  than  twenty-eight  (28)
 45    days, nor later than seventy (70) days, from the date of the assignment of the
 46    case  to  the evaluator.  If a case will be heard later than seventy (70) days
 47    from the date of assignment, the evaluator shall file a notice with the  trial
 48    court  providing  reasons for the delay and informing the court of the date of
 49    the hearing.
 50        (2)  Counsel for the parties and the evaluator may issue subpoenas for the
 51    hearing in the manner provided in rule 45(a) of the Idaho rules of civil  pro-
 52    cedure.
 53        (3)  At least fourteen (14) days prior to the date of the evaluation hear-
                                                                        
                                           5
                                                                        
  1    ing, each party shall file with the evaluator and serve upon all other parties
  2    a  prehearing  statement  containing  a list of witnesses the party intends to
  3    call at the evaluation hearing and a list of exhibits and documentary evidence
  4    a party intends to utilize at the hearing. The document will identify  whether
  5    the  testimony  shall be live, presented in a sworn writing, or taken by tele-
  6    phone.  Upon request, all evidence identified shall be made available for  the
  7    opposing party's inspection at least seven (7) days prior to the hearing date.
  8    The  evaluator  shall  have  the right to exclude any evidence not provided in
  9    compliance with this section.
 10        (4)  The evaluator shall control the mode and  order  of  proof  with  the
 11    objectives of making the presentation of evidence effective for the ascertain-
 12    ment of facts, avoiding the needless consumption of time, protecting witnesses
 13    from  harassment  and  undue  embarrassment  and ensuring the fair, swift, and
 14    cost-effective determination of the case. Witnesses shall testify  under  oath
 15    with the full penalty of law to apply to violation of that oath. The evaluator
 16    may  allow testimony by telephone or other nontraditional means. The evaluator
 17    may question any party's witness. A party has the right  of  cross-examination
 18    of any witness that testifies.
 19        (5)  The  hearing  may  be recorded electronically upon the request of any
 20    party, the cost to be borne by that party.
 21        (6)  Proceedings shall be under the control of the evaluator and as infor-
 22    mal as practicable. The extent to which the formal rules of evidence  will  be
 23    applied  shall  rest  in the discretion of the evaluator. To the extent deter-
 24    mined applicable, the evaluator shall construe those rules liberally in  order
 25    to effectuate a fair, swift and cost-efficient procedure.
 26        (7)  To effectuate the fair, swift and cost-efficient nature of the evalu-
 27    ation proceedings, the following documents shall be presumed admissible at the
 28    evaluation  hearing and may be provided to the evaluator prior to the hearing,
 29    provided the documents are disclosed in the prehearing  statement  and,  where
 30    relevant, the name, address and telephone number of the author of the document
 31    is contained in the document or set forth in the prehearing statement:
 32        (a)  A  bill, report, chart or record of a hospital, doctor, dentist, reg-
 33        istered nurse, licensed practical nurse, physical therapist,  psychologist
 34        or  other  health  care  provider,  on  a  letterhead, billhead or another
 35        clearly identifiable document  as  part  of  the  provider's  professional
 36        record;
 37        (b)  A  bill  for  drugs,  medical appliances or other related expenses on
 38        letterhead, billhead or another clearly identifiable document as part of a
 39        provider's professional record;
 40        (c)  A bill for, or estimate of, property damage or loss on  a  letterhead
 41        or  billhead.  In the case of an estimate, the offering party shall notify
 42        the adverse party as part of the prehearing statement whether the property
 43        was repaired, in full or in part, and shall provide a copy of  the  actual
 44        bill showing the cost of repairs;
 45        (d)  A  police,  weather,  or wage loss report or standard life expectancy
 46        table to the extent it is relevant without need for authentication;
 47        (e)  A photograph, videotape, x-ray, drawing, map,  blueprint  or  similar
 48        evidence to the extent it is relevant without the need for authentication;
 49        (f)  The  written statement of any witness made as part of a police inves-
 50        tigation;
 51        (g)  The written statement of any witness, including a written  report  of
 52        any  expert  witness  setting forth a statement of opinion based on proper
 53        qualifications and which the witness would be allowed to express if testi-
 54        fying in person, if it is made by sworn affidavit;
 55        (h)  A document not specifically  covered  by  the  foregoing  but  having
                                                                        
                                           6
                                                                        
  1        equivalent  circumstantial guarantees of trustworthiness, the admission of
  2        which would help in the swift, fair and cost-effective resolution  of  the
  3        dispute or otherwise serve the interests of justice.
  4        This  section  does not authorize direct contact by counsel with any indi-
  5    vidual in contravention of the Idaho rules of professional conduct, the  Idaho
  6    rules of civil procedure, or other law.
  7        (8)  The admission of a document under subsection (7) of this section does
  8    not  restrict  in  any  manner argument or proof relating to the weight of the
  9    evidence admitted, nor does it limit the evaluator's discretion  to  determine
 10    the weight of the evidence after hearing all evidence and the arguments of the
 11    opposing parties.
 12        (9)  The  evaluation hearing may proceed, and a decision may issue, in the
 13    absence of any party who, after due notice, fails to participate or to  obtain
 14    a  continuance.  Continuances shall only be granted for good cause and for the
 15    shortest practicable time. If a  defendant  is  absent,  the  evaluator  shall
 16    require  the  plaintiff  to  submit the evidence required for the making of an
 17    award. In a case involving more than one  (1)  defendant,  the  absence  of  a
 18    defendant does not preclude the evaluator from assessing as part of the award,
 19    damages against the defendant or defendants who are absent. The evaluator, for
 20    good cause shown, may allow an absent party an opportunity to appear at a sub-
 21    sequent  hearing  before  making an award. A party who fails to participate in
 22    the hearing or prehearing process without good cause waives  the  right  to  a
 23    trial  de novo. If it is shown to the trial court by clear and convincing evi-
 24    dence that a party has not acted in good  faith  during  the  evaluation,  the
 25    trial court may impose any appropriate sanction.
                                                                        
 26        7-1509.  DECISION  AND AWARD -- APPEALS -- TRIAL DE NOVO -- MISCELLANEOUS.
 27    (1) Within fourteen (14) days following the evaluation hearing, the  evaluator
 28    shall  issue  a  decision  in  writing  that  is  signed by the evaluator. The
 29    evaluator shall determine all issues raised  by  the  pleadings,  including  a
 30    determination  of any damages. The evaluator shall apply the law as it exists;
 31    however, neither findings of fact nor conclusions of  law  are  required.  The
 32    decision  shall be served on the parties. The evaluator shall file a notice of
 33    issuance of the evaluator's decision with the clerk  of  the  court,  together
 34    with proof of service of the notice and the decision on the parties. The deci-
 35    sion  itself  shall  not  be filed with the clerk of the court. No evaluator's
 36    award shall exceed twenty-five thousand dollars ($25,000) in total damages.
 37        (2)  Within fourteen (14)  days  after  the  notice  of  issuance  of  the
 38    evaluator's  decision is filed with the clerk of the court, any party may file
 39    with the clerk a written notice of appeal and request for a trial de  novo  in
 40    the  district  court  on  all issues of law and fact. Within twenty-eight (28)
 41    days after the request for a trial de novo is filed,  the  trial  court  shall
 42    hold  a  scheduling  conference  pursuant  to rule 16(b) of the Idaho rules of
 43    civil procedure and shall schedule the trial to commence  no  later  than  two
 44    hundred seventy (270) days from the scheduling conference.
 45        (3)  The  trial  de  novo  shall  proceed  as  if  the  evaluation had not
 46    occurred. No reference to the amount of the evaluation award or  the  fact  of
 47    evaluation shall be made to the trial court or the jury during any part of the
 48    trial  de  novo.  Discovery taken and statements made during the course of the
 49    evaluation proceeding are admissible at  the  trial  de  novo  to  the  extent
 50    allowed  by  the rules of evidence; however, no reference shall be made to the
 51    fact that any statement was made  in  an  evaluation  proceeding.  Any  dollar
 52    amounts  sought,  demanded  or  awarded  during  the evaluation, including the
 53    plaintiff's agreement that for the purposes of the  evaluation  the  claim  is
 54    limited  to  twenty-five  thousand  dollars  ($25,000), shall be treated as an
                                                                        
                                           7
                                                                        
  1    offer to compromise pursuant to rule 408 of the Idaho rules  of  evidence  and
  2    shall  not be admissible at trial. Any examination made pursuant to the provi-
  3    sions of section 7-1507(1)(c), Idaho Code, shall be subject to rule 35 of  the
  4    Idaho  rules of civil procedure. Any violation of the rules in this subsection
  5    by a party or its representatives shall be subject to appropriate sanctions by
  6    the trial court.
  7        (4)  The relief sought at trial shall not be limited by the  selection  of
  8    the  evaluation  option.  An evaluator shall not be called as a witness at the
  9    trial de novo.
 10        (5)  The trial court shall assess all costs and reasonable attorney's fees
 11    against a party who appeals from an evaluation award and fails to improve  its
 12    position  at  the  trial  de  novo by greater than twenty percent (20%), which
 13    shall include consideration of offsets, counterclaims and third party claims.
 14        (6)  Up to thirty (30) days prior to the actual date of a trial  de  novo,
 15    the  nonappealing  party may serve upon the appealing party a written offer of
 16    compromise. In any case in which an offer of compromise is not accepted by the
 17    appealing party within ten (10)  calendar  days  after  service  thereof,  the
 18    amount  used for determining whether the party appealing the evaluator's award
 19    has improved its position shall be the amount of the offer of compromise.  The
 20    evaluator's decision and the offer of compromise shall not be submitted to the
 21    trial court until after the verdict is rendered in the trial de novo.
 22        (7)  The  trial  court  may  assess  some  or  all  costs  and  reasonable
 23    attorney's  fees against a party who withdraws its request for a trial de novo
 24    where the withdrawal is not in conjunction with the acceptance of an offer  to
 25    compromise.
 26        (8)  For  the  purposes  of  this section "costs and reasonable attorney's
 27    fees" means all those provided for by statute or rule as well  as  all  expert
 28    witness  and other expenses the court finds were reasonably incurred after the
 29    appeal from the evaluation award was filed.
 30        (9)  If the nonappealing party from the evaluation prevails at  the  trial
 31    de  novo,  even though the appealing party may have improved its position from
 32    the evaluation, this chapter does not affect or preclude  the  application  of
 33    any  other  statute or rule regarding fees or costs including, but not limited
 34    to, those set forth in titles 7, and 12, Idaho Code,  section  41-1839,  Idaho
 35    Code, or the Idaho rules of civil procedure.
 36        (10) If  no  appeal  has  been filed at the expiration of twenty (20) days
 37    following the filing of the evaluator's notice of decision, a judgment may  be
 38    presented  to  the court by any party accompanied by a copy of the evaluator's
 39    award and if the judgment is in conformity with the evaluator's award it shall
 40    be entered. The judgment, when entered, shall have the same force  and  effect
 41    as  any  other  judgment  in a civil action but it is not subject to appellate
 42    review and may only be set aside pursuant to the provisions of rule 60 of  the
 43    Idaho rules of civil procedure.
 44        (11) Witness fees and other costs provided for by statute or court rule in
 45    district  court  proceedings shall be awarded by the court upon entry of judg-
 46    ment in the same manner as if the hearing had been held in court.
 47        (12) An evaluator may obtain a judgment for his fees in the pending  liti-
 48    gation  against  any  party that refuses to pay its share of the fee. Judgment
 49    shall be obtained by motion to the trial court which can only be granted after
 50    the party failing to pay has had the opportunity to object.
                                                                        
 51        7-1510.  RIGHT TO TRIAL BY JURY. The intent of this statute is to maintain
 52    the right to a jury trial and the provisions of this  statute  shall  be  con-
 53    strued to uphold that right.
                                                                        
                                           8
                                                                        
  1        7-1511.  SEVERABILITY. If any provision of this chapter or its application
  2    to any person or circumstance is held invalid, the remainder of the chapter or
  3    the  application  of  the  provision  to other persons or circumstances is not
  4    affected.
                                                                        
  5        SECTION 2.  This act shall be in full force and effect on and  after  July
  6    1, 2001, and trial court administrators of each judicial district of the state
  7    of Idaho shall, thereafter, compile the names of individuals desiring to serve
  8    as civil litigation evaluators in their respective judicial districts pursuant
  9    to  the provisions of this act. To effect a transition, the provisions of this
 10    act shall apply only to those cases pending on, or  filed  after,  October  1,
 11    2001.

Statement of Purpose / Fiscal Impact



  STATEMENT OF PURPOSE
                                
                            RS 11005
This bill is designed to reduce the cost of litigation and speed
the resolution of conflicts that have resulted in a lawsuit.  It
provides for independent case evaluations based on review of the
evidence by impartial evaluators.  It will help people who have a
valid but smaller claim, obtain an attorney.  Once the case has
been through the evaluation process, a party that is dissatisfied
with the decision may still have a full trial without any mention
of the 'evaluation process'.  However, if the dissatisfied party
fails to substantially improve his position with a jury, he will be
forced to pay the other side's attorney's fees if the ultimate
court decision is less than 20% better than the evaluator's
decision. It applies only to cases for money damages under $50,000. 
It is based on a system that has been used in Washington State
since the 1980's.  It has resulted in the reduction of court
caseloads and faster resolution of lawsuits.  In addition to
Washington, similar statutes are also used in Hawaii, California,
Georgia, Illinois and New York.  

                         FISCAL IMPACT
                                
This legislation should have a positive impact on the state General
Funds by reducing court caseloads, relieving courts, judges, clerks
and other court personnel of time spent on the cases settled by
this evaluation procedure.




Contact
Name: Rep. Leon Smith 
Phone: 332-1261
 Name: David Kerrick
 Phone: 459-4574


STATEMENT OF PURPOSE/FISCAL NOTE               H 24